Round one of the battle in California U.S. District Court when resoundingly to Apple. Initially, Judge Lucy Koh moved to dismiss the case, but in a somewhat unusual outcome a three-judge panel at the U.S. Court of Appeals for the Federal Circuitordered [PDF] Judge Koh to reconsider tossing the case. Judge Koh subsequently allowed Apple to take Samsung to trial, and in a stunning outcome the jury -- some of whose family members were Apple shareholders -- found Samsung guilty of $1.05B USD in damages. Apple was found innocent of Samsung's infringement claims.

In the wake of that stinging ruling Apple looked to capitalizing, looking to triple the damages to $3B USD on the grounds that the jury found the infringement to be "willful" and non unintentional.

The Samsung Galaxy S III

But that round of the battle, which is still ongoing, only deals with last generation devices. A second, newer case was filed by Apple in February target the Galaxy Nexus (which at the time was one of Samsung's flagship designs). Apple alleged that the Nexus infringed on eight of its patents. Samsung, as with the previous suit, filed a counter-claim, alleging the iPad infringed on eight of its own patents.

In recent weeks both companies have looked to pile on new claims to that second suit, asking Judge Grewal to refresh it to contain their rival's current products.

Ultimately Judge Grewal largely sided with Apple's claim that it was valid to tack on a broad range of devices, despite the time involved, although he did offer Samsung a bit of good news by approving its iPhone 5 addition to the counterclaim.

Technically, Google-owned Android phonemaker subsidiary Motorola Mobility and Apple are still at war, but their case has gone nowhere. The pair's suits/countersuits have been dismissed with prejudice not once,not twice, but three times from different federal courts.

As for Samsung v. Apple, despite the big jury loss, virtually no Samsung products have been banned from sale. Judge Koh recently struck down the ban on the Galaxy Tab 10.1 (the precursor to the Note 10.1), as the jury found it did not infringe on U.S. Design Patent D504,889, a design patent which depicted a bulkier button-less early iteration of the iPad, nicknamed by some the "fat iPad".

Many Android smartphones have escaped Apple's ban hopes.

While Judge Koh did acknowledge that the Tab 10.1 was found to infringe on Apple user interface patents, she argued that was insufficient to ban the handsets.

Judge Koh had put in place a preliminary injunction on the Galaxy Nexus, pending the outcome of the second trial back in June. But in early October the U.S. Court of Appeals for the Federal Circuittossed that ban as well, arguing that Apple's arguments regarding Samsung's supposed infringements were flawed and demonstrated a lack of understanding about the workings of Android.

While the $1B USD jury verdict was a blow for Samsung, considering the company is pulling in a cool profit of $7.4B USD per quarter, the impact shouldn't be too big, even if it holds up on appeal.

III. Samsung May be Forced to Pay More, But Bans are Unlikely

The Apple versus Samsung conflict, the last of the major lawsuit battles to appear to have some life left, also happens to be the most pivotal for both Android and Apple. Samsung is by far the biggest smartphone maker, and is ahead of Apple in unit sales. It is also the only smartphone maker to common anywhere close to Apple's gawdy margins (though it still makes much less profit).

The most wild outcome, with the additions would be for the nation's two best-selling phonemakers to have all their current product banned from sale. (An outcome that would surely please some like HTC and Nokia Oyj. (HEX:NOK1V)).

More likely there will be few if any bans, based on past cases. But the time-consuming case may lead to another billion dollar verdict.

In the last some jurors had family members who were Apple shareholders.
[Image Source: SomanyMP3s]

Apple has a distinct advantage in that the case is being tried in a local court, with jurors selected from a relatively affluent region, where many people are either Apple shareholders or have family members who hold Apple stock. Judge Koh in the previous case said it would be fine for jurors to have family members with large amounts of Apple stock, as she did not see that as an unacceptable bias.

Amidst that outcome, the most likely outcome may be that Samsung is forced to pay another "licensing fee" sort of sorts -- a billion dollard dent -- but is unlikely to see substantial product bans, given Apple's unwillingness to license Samsung patents covering relatively trivial and ubiquitous software features (some of which are in the early stages of invalidation) or design features (like the rectangle).

quote: Lastly for this category, Apple proposes to add the Jelly Bean operating system to its claims. The Jelly Bean operating system is the new version of the Google Android system that is used on all Samsung mobile devices, including those named by Apple in this suit. The Jelly Bean operating system was first released in July 2012.As the moving party, Apple bears the burden of showing that it “acted with diligence in promptly moving to amend when new evidence is revealed.” Apple fails to do so. Apple merely alleges in one paragraph of its October 5 motion that the Jelly Bean was released in July 2012, and inclusion of the system “will not increase the number of claims asserted or introduce any new infringement theories.”

This is insufficient to show diligence for making a substantial change to the infringement contentions.

Turning to the question of prejudice, it is problematic that Apple makes no reference in its initial briefing to the infringement theories or patent claims it wishes to charge against Jelly Bean. Samsung would be prejudiced by the lack of specificity in Apple’s proposed amendment because it will not have notice to the claims it must defend against. Moreover, as Samsung correctly noted, such an amendment would be overbroad and may sweep any number of Samsung devices using the Jelly Bean operating system into this suit. The Jelly Bean operating system is used on numerous Samsung devices. Samsung also does not have any design control over the content of Jelly Bean as it is a Google Android product that Samsung itself did not develop. The court will not permit a sweeping amendment that might apply to devices other than those properly tied to Samsung. The court will allow this proposed amendment, but only as to the Jelly Bean product Apple has specified: the Galaxy Nexus.

Too bad the market moved on and the Nexus 4 is for sale, sold out and back ordered :)